Divorce Act Changes - Man with children

The Divorce Act governs how two legally married spouses can divorce. It also deals with custody, access, child support and spousal support. The Divorce Act has not been significantly amended since 1985.

Starting March 1, 2021, the Divorce Act will significantly change the law in many areas. There are language changes related to parenting (custody and access), a new focus on dealing with family violence, and more direction when parents want to relocate their children’s residence.

In this blog, we will look at the changes related to parenting and family violence. In a future blog, we will focus on the relocation changes.

Changes to Parenting (Custody and Access)

When parents separate, the courts decide both the living arrangements of the children and the decision-making functions of the parents based on the children’s best interests. However, the previous language in the Act often created conflict: one parent would have custody while the other parent had access. The new changes to the Divorce Act show a more sensible approach to the language used and responsibilities of the parents.

To be clear, how children are dealt with post-separation is still governed by the principle of “best interests of the child”. However, there is now more direction with specified factors relevant to that determination.

There are two broad concepts that parents need to be aware of. The first is “decision-making responsibility”. These include significant decisions about a child’s well-being, including health, education, culture, language, religion, spirituality, and significant extracurricular activities. These decision-making responsibilities can be allocated to one or both parents depending on the circumstances.

The second broad concept is that of “parenting time”. The idea is that the child will be in the care of a particular parent during certain times of the week or month. This would usually include weekends, weeknights and overnights, summers, Christmas, Easter/Spring Break and other important dates. There is no presumption of equal time for each parent.

Under the new legislation, the court will make Parenting Orders or Contact Orders based on the best interests of the child. The Orders will specifically consider which parent has decision-making responsibility, and allocate parenting time.

There are also new provisions to provide a list of factors that need to be considered to be in the best interests of the child. There is a new “primary consideration” which indicates consideration must be had to the child’s physical, emotional and psychological safety, security, and well-being. The other 11 factors (which are non-exhaustive) include the child’s views and preferences, the child’s cultural, linguistic, religious and spiritual
upbringing and heritage, including indigenous upbringing and heritage, and the willingness of the parents to cooperate in parenting decisions.

Family Violence

The new Divorce Act has a significant and much needed emphasis on family violence. The previous Divorce Act was silent on this issue.

Family Violence is now defined in the following way:

Family violence means any conduct, whether or not the conduct constitutes
a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of corrosive and
controlling behaviour or that causes the other family member to fear for their own safety or for that of another person – and in the case of a child, the direct or indirect exposure to such conduct – and includes:

a) Physical abuse, including forced confinement but excludes the use
of reasonable force to protect themselves or another person;
b) Sexual abuse;
c) Threats to kill or cause bodily harm to any person;
d) Harassment, including stalking;
e) The failure to provide the necessaries of life;
f) Psychological abuse;
g) Financial abuse;
h) Threats to kill or harm an animal or damage property; and
i) The killing or harming of an animal or the damaging of property.

If family violence exists, there are significant consequences surrounding the parenting of children, relocation and possibly support.

There are no changes to the child support or spousal support provisions of the new Act. The main focus of the changes to the Divorce Act have been on parenting issues of the children post-separation.

If you need assistance navigating the new changes to the Divorce Act or other types of family law issues, please do not hesitate to contact us to see how we may be able to assist you.

Lonny Balbi, Q.C.

-Written by Lonny Balbi, QC

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